Michael B. Gerrard

Risks of Hazardous Waste Sites versus Asteroid and Comet Impacts: Accounting for the Discrepancies in U.S. Resource Allocation

Approximately

US Federal Climate Change Law in Obama’s Second Term †

6 billion is spent annually in the United States on the cleanup of sites regulated under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund). The current health risks posed by such sites are thought to be quite small; the expenditures are justified primarily as protecting hypothetical future residents of these sites. Approximately 0.05% of this amount, or

Legal Pathways for a Massive Increase in Utility-Scale Renewable Generation Capacity

3 million, is spent annually by the U.S. government on the detection of asteroids or comets that could strike the earth. Such damaging impacts do occur from time to time--most recently in 1908 in an unpopulated region of Siberia--but no person is confirmed ever to have died as a result. Anticipated impacts over the course of 1 million years would yield deaths that, when annualized, total approximately 4,000 per year. The risk reduction goal for CERCLA is 15 orders of magnitude greater than that for asteroid/comet detection. A modest increase in resources devoted to asteroid detection would greatly increase the chances of early detection of a threatening object, allowing an effective defense to be attempted. This article argues that the much lower risk-to-resources ratio for CERCLA cleanups than for asteroid and comet detection can be explained by four primary factors: (1) the regard for future generations, since CERCLA benefits mainly the unborn; (2) concrete fears, since toxics are much more feared than asteroids or comets; (3) the source of the threat, since toxic contamination is caused by human beings, unlike impacts from space objects; and (4) the greater political constituencies for hazardous waste cleanup than for space object detection.

Policy Readiness for Offshore Carbon Dioxide Storage in the Northeast

This commentary details the United States’ progress in advancing climate change law since President Barrack Obama’s re-election in 2012, in spite of congressional dysfunction and opposition. It describes how the Obama administration is building upon earlier regulatory efforts by using existing statutory authority to regulate greenhouse gas emissions from both new and existing power plants. It also explains the important role the judiciary has played in facilitating more robust executive actions, while at the same time courts have rejected citizen efforts to force judicial remedies for the problem of climate change. Finally, it suggests some reasons why climate change has gained more prominence in the Obama administration’s second term agenda and considers how domestic actions help the United States to reposition itself in international climate diplomacy.

Climate Change and Human Trafficking After the Paris Climate Agreement

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (ELI Press forthcoming 2018), discusses the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act; state and local approvals; and species protection laws. It also presents recommendations for lowering the obstacles and briefly discusses several corollary actions that are needed.

Regulating Imports into RGGI: Toward a Legal, Workable Solution

Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered (“carbon capture and storage” or “CCS”). Research is currently being undertaken into the possibility of injecting carbon dioxide into the seabed. One study, involving researchers from Columbia’s Lamont-Doherty Earth Observatory, aims to identify possible injection sites in the seabed along the northeast coast of the U.S. It is anticipated that, following identification of suitable sites, a demonstration project will be undertaken to assess the feasibility of offshore CCS. This paper outlines key regulatory requirements for the demonstration project and any subsequent commercial operations.

The Opportunities for and Hurdles to Combined Heat and Power in New York City

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the rate of climate change, the ability of different societies to cope with this change, and other factors. However, several estimates put the number of people in the hundreds of millions in the latter part of this century. It is well documented that displacement leads to a considerable increase in human trafficking (often for sexual exploitation or forced labor) and smuggling (which often leads to fatalities in transit). Climate change represents one of the most profound injustices in today’s society, for those who will suffer the most, those displaced from their homes, are the poorest among us – those who contributed the least to the excess energy use that is at the root of much of the problem.

Climate Change Action Without Congress

This white paper evaluates the legal workability and constitutionality of what is frequently considered the most feasible mechanism for RGGI to use in regulating imports: an obligation on RGGI “load serving entities” (LSEs) — those companies responsible for supplying electricity to end-use customers — to purchase allowances to account for the emissions associated with the electricity they sell that is imported. Ultimately, although there are many design complexities yet to be worked out, we find that an LSE-centered approach could present a viable pathway forward for RGGI states’ regulation of imports. It is likely to create long-term price signals about the value of clean energy and to help prevent emissions “leakage.” And importantly, an LSE-centered mechanism has a good chance of being found constitutional under the dormant Commerce Clause and Federal Power Act preemption. However, an LSE-centered approach also has some features that may be considered drawbacks: it would likely increase consumer prices within RGGI without sending any immediate price signals to out-of-state generators to incentivize their emissions reductions (instead, such price signals will develop over time as new clean generation and demand-side resources come on-line). Given these features, RGGI states will want to think carefully about whether an LSE-centered imports mechanism accomplishes their goals.

The law on what documents scientists must keep and disclose

This paper first seeks to quantify the potential for CHP development in New York City and describe the primary hurdles to optimal deployment in Parts I and II. Part III provides policy solutions for overcoming these hurdles and recommendations for how stakeholders can use information and analysis to maximize the opportunities for CHP.

Threatened island nations : legal implications of rising seas and a changing climate

The most important authority derives from the Clean Air Act (CAA). As the Supreme Court held in 2007 in Massachusetts v. EPA, greenhouse gases (GHGs) fall within the definition of “air pollutant” under the CAA, and the Environmental Protection Agency (EPA) has the authority to regulate them. Exercising that authority, EPA in December 2009 issued an “endangerment finding” that GHGs endanger public health and welfare (a prerequisite to further action). It then proceeded to promulgate a series of regulations, including standards for GHG emissions for automobiles, and rules concerning the prevention of significant deterioration program for new and modified stationary sources. These actions were the subject of more than 100 challenges filed with the U.S. Court of Appeals for the District of Columbia. That court combined the cases and, on June 26, 2012, dismissed them all, finding that EPA was acting well within its statutory authority. Unless the Supreme Court grants certiorari, EPA now has a clear path to proceed with further rulemaking.